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Traditional legal methodology: What if you have

never seen an elephant before?
Posted on February 26, 2016 by Mariana Gkliati in Public Law (http://leidenlawblog.nl/category/public-law) , 2
(http://leidenlawblog.nl/articles/traditional-legal-methodologywhat-if-you-have-never-seen-an-elephant-
before#comments)

According to conventional wisdom among legal

scholars, legal methodology is so obvious that it does
not need to be discussed. Methodology sections of
books and journal articles refer to the infamous
elephant path, as the route that everyone else before
us has taken, suggesting that it would be stating the
obvious if the author were to describe their research
methods with anything more than ‘traditional legal
research’ or ‘desk research’.

But can you still recognise the elephant path, if you’ve never seen an elephant before? Although
it may be obvious to legal scholars, to the untrained eye there often seems to be a lack of any
methodology, which disqualifies the academic value of the legal discipline compared to other
social sciences and has significant consequences with respect to the allocation of funds.

An elephant path, in the ‘Elephant paths-project’ (http://www.elephantpaths.net/), a research

project drawing on urban architecture, social anthropology and art is described as such:

‘Elephant path is a name for a path that is formed in space by people making their own paths
and shortcuts; it is an unofficial route. Elephant path is an anarchist way of moving in a city, a
town or a village. It is an overlaying system of going from a place to a place in a space
regardless of the city/town plan. Still, it is connected to the streets and the architectural forms.’

This definition comfortably fits within the legal research paradigm. Here as well, an elephant
path has been shaped throughout the development of the legal discipline by researchers moving
in the space of a certain field of law, going from their initial assumption to their final research
outcome.
What is important to realise is that there is not just one single elephant path. The elephant path
is merely a verbal construction that helps us describe the established process of accessing a
destination. In practice, there are as many urban elephant paths as there are people going to
their usual destination, and there are as many legal research elephant paths as there are
research projects.

These paths are connected to the ‘streets and architectural forms’ or, in other words, the
conventions of the legal discipline. They still constitute, however, an unofficial route, since in
research one can arrive at the same conclusion using different paths, i.e. research methods.

But what is also true is that a different path may lead to a different conclusion. Even in
traditional legal methodology there are different choices to be made. Why was a particular legal
instrument chosen for the normative assessment? Why was a topic of EU law studied within the
international legal framework? Why was a dynamic interpretation chosen over the will of the
drafters?

Therefore, even in the traditional elephant path, if I may dishonestly borrow a metaphor from
psychology, you need to ‘direct the rider, motivate the elephant, and shape the path’.

Direct the rider: The author directs the reader-rider of the elephant from early on, so that she
will be able to find her way in the particular normative environment. This general direction is
provided with the description of the theoretical and methodological framework, within which
the research is situated. At this level the author may engage in discussions ranging from the
methods of interpretation and argumentation, to the preferred theory of truth.

Motivate the elephant: The important methodological choices are made explicit and are clearly
justified. Only then can the method-elephant be assessed as to whether it is consistent and
reliable. The goals and motivations of methodological choices should not remain hidden from
the critical reader. After all, a battle is only fair when there is equality of arms.

Shape the path: The reader is guided through the course of the research with all the steps
documented in detail in the citations and endnotes, as well as with a clear argumentation
structure.
Only when all three points have been addressed can the reader follow and question the research
path, and can legal research claim to be using a scientific method. The interaction of law with
other disciplines, either because of the growing demand for interdisciplinary cooperation or
because of the competition for funds, has raised awareness within Law Schools regarding the
need for methodological transparency. Law can benefit even more from the work of other
disciplines in respect to both, alternative perspectives and research tools. Yet most legal scholars
seek to fit their conceptual analysis into narrow and strictly legal boxes. It has become obvious
that as long as legal scholars keep reading only legal books and Commission White Papers, the
discipline is doomed to learn only from itself and never from the others.